Citation Nr: 0805136
Decision Date: 02/13/08 Archive Date: 02/20/08
DOCKET NO. 06-04 231 ) DATE
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On appeal from the
Department of Veterans (VA) Affairs Regional Office (RO) in
St. Louis, Missouri
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Veteran represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
J. D. Watson, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 2000 to
October 2004.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 RO decision, which denied
service connection for a low back disability.
FINDING OF FACT
The medical evidence of record shows that the veteran does
not have a current diagnosis of a low back disability.
CONCLUSION OF LAW
The veteran does not have a low back disability which was
incurred in or aggravated by active service. 38 U.S.C.A. §§
1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
veteran's claims folders. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
evidence submitted by the veteran or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim. The
veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II), the United States Court of
Appeals for Veterans Claims (Court) held that VA must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) request that the claimant provide any
evidence in his possession that pertains to the claim.
Prior to initial adjudication of the veteran's claim, a
letter dated in November 2004 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio, at 187. The veteran was aware that
it was ultimately his responsibility to give VA any evidence
pertaining to the claim. The November 2004 letter also told
him to provide any relevant evidence in his possession. See
Pelegrini II, at 120-121.
Since the Board has concluded that the preponderance of the
evidence is against the claim for service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot, and no
further notice is needed. See Dingess v. Nicholson, 19 Vet.
App. 473 (2006).
The Board also concludes VA's duty to assist has been
satisfied. The veteran's service medical records and VA
medical records are in the file. The veteran has at no time
referenced outstanding records that he wanted VA to obtain or
that he felt were relevant to the claim.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
held that an examination is required when (1) there is
evidence of a current disability, (2) evidence establishing
an "in-service event, injury or disease," or a disease
manifested in accordance with presumptive service connection
regulations occurred which would support incurrence or
aggravation, (3) an indication that the current disability
may be related to the in-service event, and (4) insufficient
evidence to decide the case.
The veteran was afforded an appropriate medical examination
to obtain an opinion as to whether the veteran had a low back
disability that could be directly attributed to service.
Further examination or opinion is not needed on the claim
because there is no persuasive and competent evidence that
the veteran has a current diagnosis of the claimed condition.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
II. Service Connection
The veteran contends that he suffers from a low back
disability as a result of an injury incurred during service.
For the reasons that follow, the Board concludes that service
connection is not warranted.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110. For the showing of
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time.
38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for the claimed
disorder, there must be: (1) medical evidence of a current
disability; (2) medical or, in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
In this case, the medical evidence of record shows that the
veteran does not have a current diagnosis of a low back
disability, nor has he ever received such a diagnosis. The
veteran's service medical records show that, in March 2001,
the veteran complained of pain in his lower spine, which he
stated began three months prior. The veteran gave no history
of trauma, and the examiner rendered no diagnosis. In
February 2002, the veteran again complained of bothersome
lower back pain after running the night before. Again, no
diagnosis was rendered by the examiner. At his separation
examination, in September 2004, the veteran reported a
history of recurrent back pain, but the examiner noted that
the veteran's spine was normal.
In October 2004, the veteran filed a claim for service
connection for low back pain. In December 2004, the veteran
was afforded a VA general and spinal examination. At that
examination, the veteran again complained of low back pain.
Upon inspection of the veteran's low back, the examiner found
no obvious abnormalities or deformities and no tenderness
with palpation over the paraspinal muscles or the spinous
process throughout the lumbar spine. Range of motion, tendon
reflexes, and strength were all normal. X-ray findings
revealed a slight tilting of the veteran's spine to the
right. There was no significant disc space narrowing, no
osteophytic changes, and no evidence of fracture. The
veteran's joints were unremarkable, with some evidence of
retrolisthesis of L5 on S1, of unknown cause.
The examiner concluded that the veteran had no acute disease.
VA treatment records, from March 2005, show that the veteran
reported a history of chronic back pain, with no complaints
of back pain at that examination. The veteran reported that
he currently has no problems with his back, but takes
ibuprofen for the pain, which is rarely severe, if necessary.
Again, there was no diagnosis of a low back disability.
Pain alone, without a diagnosed or identifiable underlying
malady or condition, does not in and of itself constitute a
disability for which service connection may be granted. See
Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal
dismissed in part, and vacated and remanded in part sub nom.
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).
As the veteran does not have a current diagnosis of a low
back disability, the Board need not address the matter of
whether there is a nexus to service.
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. 38 U.S.C.A. § 1110;
see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding
that interpretation of sections 1110 and 1131 of the statute
as requiring the existence of a present disability for VA
compensation purposes cannot be considered arbitrary).
Evidence must show that the veteran currently has the
disability for which benefits are being claimed. Because the
medical evidence does not establish that the veteran has a
diagnosis of low back disability in this case, the Board
finds that the veteran is not entitled to service connection
for a low back disability. See Id.
In light of the foregoing, the Board finds that the
preponderance of the evidence is against the veteran's claim.
Consequently, the benefit-of-the-doubt rule does not apply,
and the claim must be denied. 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to service connection for a low back disability
is denied.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs